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Friday, March 04, 2016

A kerfuffle has broken out in
the Canadian news media about eligibility criteria for assisted dying. The
Supreme Court of Canada in its decision is unequivocal
that limiting access to include only people who are about to die would be
violating the Charter rights of other patients. Here are the core criteria the
Court set, an eligible person would be a ‘competent
adult person who (1) clearly consents to the termination of life and (2) has a
grievous and irremediable medical condition (including an illness, disease or
disability) that causes enduring suffering that is intolerable to the
individual in the circumstances of his or her condition.’ It is uncontroversial
then that terminal illness cannot be a viable access threshold for the purpose
of upcoming federal as well as provincial-territorial legislation. That hasn’t
stopped constitutional ‘experts’ like Margaret Wente, a notorious
columnist at the Globe and Mail to insist on just that.
Experts celebrated in her piece include Harvey Chochinov, an anti-euthanasia
activist appointed in the dying days of the Harper government to advise him on
how to act on the Supreme Court judgment. Chochinov acted as a witness for the
Harper government’s side during the trial. His evidence, obviously, did not
convince the trial judge and her decision was upheld in what was a unanimous
decision going against everything Chochinov argued for. It is no surprise that
Wente, a writer not known for good judgment, celebrates Harper’s appointee on
her Globe and Mail platform.

The Globe and Mail ran no less than at least three
opinion pieces arguing that a
parliamentary special joint committee as well as a provincial-territorial expert
advisory group got it wrong when they included for instance people with intractable
depression among those eligible for access to assisted dying. So, here’s a
quick few notes on Wente. She writes that 110 psychiatric patients have been ‘euthanized’
in the Netherlands between 2011 and 2014. The journal article she refers to actually
notes that these were cases of euthanasia or assisted suicide, ie it is not the
case that 110 patients were actually euthanized. Small difference in Ms Wente’s
fantasy land.

Another highlight from Wente land, ‘The rationale [in the parliamentary committee report, U, Sch.] is
that psychiatric patients should have the same rights as everybody else.’ Well,
in Canada we have this little document called the Charter of Rights and
Freedoms, and when we take a closer look at it, we will realise that competent
psychiatric patients have the same rights as competent people who are not
psychiatric patients. Labelling someone ‘psychiatric patient’ doesn’t
miraculously do away with their Charter rights! Apparently the Globe and Mail
does not have funding any longer for basic fact checking of the content the
writers generate for its opinion columns.

Wente eventually claims that
the numbers of psychiatric patients seeing their lives ended by assisted dying are
growing fast. This is doubtful, given that the overwhelming majority of
requests for assistance in dying from psychiatric patients are denied in the
Netherlands. 2013 saw an increase in cases of euthanasia for patients with
psychiatric illnesses. A total of 42 cases were reported—as is legally
required—to the Dutch Euthanasia Review Committee. The 42 cases reported in
2013 compare against 12 in 2012. Of these 42 cases, 32 were investigated by the
Committee in 2013 and the findings published. In 22 of these 32 cases, depression
was mentioned as (one of the) the cause(s) of suffering. This brief, intermittent increase in cases is probably mostly
due to the start of the ‘end-of-life’ clinic, an organisation that aims to
grant euthanasia to all of, and only, those who fulfil the due care criteria in
the Netherlands but who have been unable to obtain assisted dying from their
physician. The start of this service in March 2012 led to a significant number
of applications from patients who were determined to end their life by means of
assisted dying, among them were a large number of patients with psychiatric
illnesses (38% of applicants). Some 62% of these patients with psychiatric
illnesses were refused an assisted death mostly because their death wish was
judged to be more or less impulsive, and therefore did not meet the Dutch due
care criteria. The Dutch Minister of Justice revealed in August 2014 in a letter to the Dutch Parliament
that there were no signs of a further increase in 2014. Meanwhile, in Canada, Ms Wente claims as a fact
dramatic increases in the numbers of psychiatric patients being euthanized. You
need to do that, when all you have are 110 cases over a fair number of years, that
don’t quite sustain claims of slippery slopes and out of control actions by laissez
faire doctors. A number of those patients whose requests were denied eventually
committed suicide by other means, a not uncommon occurrence among people with
intractable depression. Among this small number (ie 110 people over a 4 year
period in a country of about 17 million people) of psychiatric patients, the
authors of the study that Wente goes on and on about in her column, looked more
closely at only 66 of those cases, slightly more than half. It turns out that the
majority of those cases consisted of patients suffering from depression. That
is highly significant, because there are good reasons to make intractably
depressed people (who can be assessed for competence and, because they are not
imminently dying, for the endurance of their wish to die) eligible for access
to assisted dying. I have published
last year a journal article, co-authored by Professor Suzanne van de
Vathorst, MD PhD, of Erasmus University Medical School in which we make the
ethical case for why such people should be eligible for access to assisted dying,
provided certain sensible safeguards are met.

Trudo Lemmens, a law
professor at the University of Toronto has published two pieces in the Globe
and Mail – apparently the ideological headquarter for this sort of activism.
Not content with that, he published yet another piece (with more or less
similar content) at the Impact
Ethics website. I shall focus on the piece he has published there. Lemmens
essentially has the same concerns that drive Wente and relies on the same
evidence. He claims, ‘The [Canadian
parliamentary, U. Sch.] Committee ignores the Court’s emphasis on the narrow
basis of its ruling and the exclusion of “euthanasia for minors or persons with
psychiatric disorders”. I encourage you to do a search for this quote in
the SCC
judgment and you’ll see
that the Court actually did nothing of the kind. Nowhere does it exclude competent
patients with psychiatric disorders from access to assisted dying. It’s plainly
obvious already from the access criteria I began with, so Lemmens is using bits
and pieces from rejected expert testimony to make his case. To be absolutely
clear on this subject: there is no exclusion of competent psychiatric patients
writ large in the Supreme Court of Canada judgment. Lemmens and Wente might not
like it, but it is what it is.

Lemmens uses the same study that
excites Wente to make the case that the Netherlands and Belgium have gone down
a slippery slope that we would end up on if we made assisted dying available to
patients who are not terminally ill. It is worth noting that the Supreme Court
in its judgment explicitly rejects that line of reasoning. It writes, ‘The regime [in Belgium,
U. Sch.] simply regulates a common pre-existing practice. In the absence
of a comparable history in Canada, the trial judge concluded that it was
problematic to draw inferences about the level of physician compliance with
legislated safeguards based on the Belgian evidence (para. 680).’ In any case,
the study that is used by Wente and Lemmens to show how far down the slippery
slope the Netherlands has gone, relies on the interpretation of
66 cases, of which the majority were patients with depressive disorder. Its
authors conclude, ‘The granting of their EAS
requests appears to involve considerable physician judgment, usually involving
multiple physicians who do not always agree (sometimes without independent
psychiatric input), but the euthanasia review committees generally defer to the
judgments of the physicians performing the EAS.’ The important bit here is that
requests for assistance in dying made by psychiatric patients involves
considerable physician judgment, usually involving multiple doctors. That
doesn’t look like powerful evidence of a country gone down the slippery slope
to terrible abusive practices.

Lemmens eventually resorts to
anecdotes from TV documentaries. We apparently have to take his word for it
that the cases he describes are uncontroversial examples of abuse. It is my
understanding that those who provided assistance in dying to the patients
featured in the documentaries do not agree with Lemmens, so perhaps the story
told by those who oppose the practice might be a tad bit on the biased side of
things.

Remarkably, the Globe and
Mail refused to allow for critical responses to these commentary style pieces.
Because false claims were made in these pieces about supposedly terrible things
happening to vulnerable mentally ill people in Belgium I asked an actual
expert, Professor Jan Bernheim, MD PhD of the University of Brussels
End-of-Life Care Research Group in its Faculty of Medicine for a reply to these
diatribes. He kindly agreed to do so. It is noteworthy that the Globe and Mail
chose not to publish his reply. At least a brief letter from the chairpersons
of the provincial-territorial expert advisory group correcting the most
flagrant errorin one of the
Globe and Mail pieces was published.

Contributions such as Wente’s and Lemmens’ do a
disservice to the debate on what kind of regulatory regime we should introduce
in Canada. Their campaign is difficult to understand, especially given the very
small number of cases (anecdotes, to be frank) that opponents of a permissive
regime rely on. I wonder whether it’s due to their inability to appreciate the
suffering that many competent patients with intractable psychiatric disorders
encounter throughout their lives. Or do they simply believe that such patients
should just ‘stick it out’? The existential suffering patients with depression
encounter, and that patients with intractable depression experience throughout
their lives is equal to the most severe physical ailments. Empirical evidence
from a large-scale study suggests that intensity
of mental suffering, on average, is equal only to the most severe physical
conditions. (Bernheim
JL, Theuns P, Mazaheri M, Hofmans J, Fliege H, M.Rose. The Potential of
Anamnestic Comparative Self-Assessment (ACSA) to Reduce Bias in the Measurement
of Subjective Well-Being Journal of Happiness Studies. 2006;7(2):227-250.)

Several comprehensive
surveys of assisted dying regimes across Europe as well as the Netherlands in
particular concluded that there is no evidence that these permissive regimes
put the vulnerable at increased risk. It is remarkable that that evidence is
studiously ignored by campaigners like Wente and Lemmens. They are playing to
public concerns about vulnerable psychiatric patients. We should be concerned
about the suffering of many psychiatric patients, but the reality is that
today, with the best available treatments, a large percentage of these patients
do not consider their lives worth living. A few of those patients would avail
themselves of assistance in dying. They are entitled to receive assistance once it has been established that they are competent to make that decision and
once it is clear that their wish remains stable over time. The Supreme Court of
Canada, in its wise decision on this subject matter heard evidence and concerns
along the lines presented by Wente and Lemmens and concluded that we will be
able to design a permissive regulatory regime that does not put psychiatric
patients at risk, the same conclusion was reached by the parliamentary
committee as well as the provincial-territorial expert panel in their
respective reports. That is reassuring. I hope the upcoming governmental
regulations both federally and provincially will be in line with the Supreme
Court’s criteria and do not arbitrarily exclude competent patients with
intractable illnesses that render their lives not worth living to them.